State v. DuhanState v. Duhan
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This сase concerns the interpretation of that part of our disorderly conduct statute which makes it a misdemeanor to make “unreasonable noise.” The state has taken an appeal to this court, after our grant of certification, from the judgment of the Appellate Session of the Superior Court that the state failed to present sufficient evidence to warrant the defendant’s conviction under
The defendant was originally charged in a four count information including, in addition to the first count of disorderly conduct, counts charging the defendant with: аssault in the third degree, in violation of
In the defendant’s appeal to the Appellate Session, she urged that court to dismiss all of the charges against her, on each count, because of insufficient evidence. Alternatively, she argued that evidentiary and instructional errors at trial required that the judgment agаinst her be set aside. The Appellate Session agreed with parts of these claims of error. On the basis of reversible evidentiary error, it ordered a new trial with respect to the counts of criminal mischief and interference with a police officer. State v. Duhan, 38 Conn. Sup. 665, 669-72, 460 A.2d 496 (1982). Determining that there was insufficient evidence to support any conviction with regard to count one, the Appellate Session ordered the entry of a judgment of not guilty оf disorderly conduct. The Appellate Session considered separately the two subsections of the disorderly conduct statute which the defendant had been charged with violating, and decided that there was sufficient evidence neither of “violent, tumultuous or threatening” behavior under
Before we can address the substantive merits of the Appellate Session’s interpretation of
The first procedural issue concerns the propriety of the defendant’s appeal to the Appellate Session from the denial of her motions for judgment of aсquittal in the trial court. The Appellate Session considered this claim, which raised the sufficiency of the evidence to support the conviction of disorderly conduct, without expressly discussing how that claim had been presented in the trial court. The state did not then maintain that normal consideration of the claim of error was inappropriate. Now, however, the state calls to our attention the representation in the defendant’s brief in this court that her motion of acquittal was made “after the State’s case.”
The state argues that no appeal can be taken from the denial of a motion for acquittal at the close of the
We need not decide today whether to respond to the growing criticism of the waiver rule. Cephus v. United States, 324 F.2d 893, 895-98, 117 U.S. App. D.C. 15 (1963); State v. Simpson, 64 Hawaii 363, 370-72, 641 P.2d 320 (1982); Commonwealth v. Cote, 15 Mass. App. 229, 241 n.8, 444 N.E.2d 1282 (1983); comment, “The Motion for Acquittal: A Neglected Safeguard,” 70 Yale L.J. 1151 (1961); Wright, op. cit., 646-48; contra ABA Standards for Criminal Justice (2d Ed. 1979) § 15-3.5. In this case, the defendant renewed her motion for acquittal after the trial court’s acceptance of the jury verdict against her. At oral argument in this court, the state agreed that, in the light of this renewed motion, we may appropriately undertake a plenary review of the evidentiary underpinnings of the state’s case.
It is the state which, as the appellant, has brought this issue to our attention. The state urges us to disavow State v. Marino, 190 Conn. 639, 650-51,462 A.2d 1021 (1983), in which we stated: “Where a person may have been convicted under more than one statutory alternative, the judgment cannot be supported unless the evidence was sufficient tо establish guilt under each statutory provision which the trier may have relied upon.” The state urges us to hold, instead, that a finding of guilty can always be sustained if there is sufficient evidence of any one of several alternatives charged conjunctively in the information. We do not agree with the state’s proposition in the unconditional manner in which it is asserted. As we held in State v. Reid, 193 Conn. 646, 667 n.22, 480 A.2d 463 (1984), “[although] the state [may] sustain its burden of proving the offense by presenting sufficiеnt evidence upon any one of several alternative statutory grounds without the necessity of proving all of those alleged . . . [i]t is error for
At no time prior to the appeal to this court has the dеfendant interposed any objection to separate consideration of the merits of the “unreasonable noise” charge. In the trial court, the defendant challenged the sufficiency of the evidence at two junctures, first at the close of the state’s case, and then at the time when the trial court had accepted the jury’s verdict. In neither of these motions did the defendant make any distinction between the evidеnce as it pertained to subsection (a) (1) and subsection (a) (3) of the disorderly conduct statute. The defendant made no motion concerning the sufficiency of the evidence at the end of the presentation of all of the evidence, nor did she request the trial court to charge out any of the statutory alternatives contained in the information and the bill of particulars. Although the trial court submitted both subsections to the jury in thе alternative, the defendant took no exception to the instructions to the jury on this ground. The defendant’s inaction thus failed to alert the trial court to its duty to consider whether it might be submitting to the jury a charge on which there was insufficient evidence. See State v. Cofone, 164 Conn. 162, 168, 319 A.2d 381 (1972). Further, the defendant never asked that the jury be polled, when it returned its verdict, to clarify the basis on which the defendant was convicted of disorderly conduct. See State v. Carter, 189 Conn. 611, 629, 458 A.2d 369 (1983). In her appeal to the Appellate Session, the defendant argued that she was not guilty of violating either subsection of
Many criminal statutes are written in the disjunctive. It would be entirely unreasonable to require the state in all instances to prove the sufficiency of the evidence of guilt under each statutory alternative before a conviction could be sustained. The defendant can reasonably be asked to assume at least part of the burden of alerting the trial court to the desirability of narrowing the issues that are to be submitted to the jury in thе event of evidentiary insufficiency.
II
We turn then to the merits of the state’s claim that, contrary to the holding of the Appellate Session, there was sufficient evidence at trial to warrant the defendant’s conviction of disorderly conduct under
The jury could reasonably have found the following facts on the basis of the state’s presentation of its case. On October 11,1980, at approximately 9 p.m., Officer James Engle of the New Milford police department responded to a complaint about a fight occurring on Railroad Street in New Milford. Upon arriving at the scene, Engle observed a fight involving several people, including the defendant. One of those involved
The defendant, who appeared to have been drinking, soon became loud and belligerent. She repeatedly cursed all those around her. The defendant’s screaming could be heard at the front desk, where Engle was working, as well as elsewhere in the building. The defendant’s shouting interrupted the work of the station, which was very busy that night because of the Railroad Street fight. Other officers who would normally have been at the station were at the hospital with one of those injured in the fight or were otherwise assisting with the investigation of what had occurred. Both Engle and the defendant’s mother tried repeatedly and unsuccessfully to calm the defendant down. Finally, at about 9:50 p.m., Engle placed the defendant under arrеst for disorderly conduct. Her resistance to Engle’s attempt to remove her to the women’s detention room led to the events which resulted in the other charges against the defendant, which we need not repeat since they are irrelevant to this appeal.
This evidence was sufficient, if the jury chose to accept it, to prove that the defendant’s conduct was both unreasonably noisy and disruptive. In light of the testimony thаt the defendant had repeatedly been asked to calm herself, a jury could legitimately conclude that her behavior was either intentional or reckless, as
The defendant does not seriously dispute that this evidence, viewed either at the end of the state’s case, or at the end of the presentation of all of the evidence, provided a factual basis for a jury finding that she had repeatedly and loudly screamed obscenities while at the New Milford police station on October 11,1980. Such behavior, she contends, does not suffice to establish the crime of disorderly conduct, because that crime requires a further assessment of her behavior to take account of its time, place and circumstances. This claim has two components. The defendant maintains that she is not guilty of disorderly conduct because: (1) her behavior took place in a private section of the police station, nоt readily accessible to the public, and therefore not in a public place, as the statute requires; and (2) her behavior was not unusual at a police station, and therefore was not unreasonable or disruptive.2 We find neither argument persuasive.
The defendant’s alternate argument, which is more cogent, urges us to conclude, as did the Appellate Session, that, viewed in its totality, the defendant’s conduct did not meet the statutory requirement that “with
We agree with the defendant that, in order to determine whether her conduct was such as to constitute “unreasonable noise,” it is important to take into consideration the time and the place at which the noise was made. We also agree that, in order to determine whether the defendant caused “inconvenience, annoyance or alarm,” it is important to take account of the reasonable capacity of the complainant to ignore momentary, trivial or inconsequential annoyances. We disagree, however, that these are necessarily questions of law rather than of fact. It was for the jury, with proper instructions, to consider all the relevant circumstances of time and place and complainant. The fact that the defendant’s conduct occurred in a police station, and that many of her noisy outbursts were directed at a police officer, cannot provide immunity as a matter of law.4 In this case, a jury had the right to conclude, on the basis of the evidence presented, that
We therefore conclude that the Appellate Session was in error when it ordered the entry of a judgment of not guilty of disorderly conduct. The judgment of guilty on count one nevertheless cannot be reinstated bеcause of the evidentiary rulings in the trial court which the Appellate Session determined to be erroneous. The state concedes that these evidentiary errors require a new trial with respect to all of the remaining counts, including count one.
There is error, the judgment of the Appellate Session is set aside as to count one and the case is remanded to the Appellate Court5 with direction to remand to the triаl court for a new trial on count one.6
In this opinion the other judges concurred.
Notes
The full text of
We note that the defendant has raised no constitutional issue in this case, although disorderly conduct statutes prohibiting “unreasonable noise” have been challenged elsewhere on constitutional grounds of vagueness and overbreadth. A number of courts have limited the scope of such statutes to avoid constitutional confrontation. See, e.g., State v. Martin, 532 P.2d 316, 317-22 (Alaska 1975); People v. Fitzgerald, 194 Colo. 415, 419-20, 573 P.2d 100 (1978); State v. New, 421 N.E.2d 626, 627-29 (Ind. 1981); Commonwealth v. A Juvenile, 368 Mass. 580, 587-99, 334 N.E.2d 617 (1975); Commonwealth v. Mastrangelo, 489 Pa. 254, 260-62, 414 A.2d 54, appeal dismissed, 449 U.S. 894, 101 S. Ct. 259, 66 L. Ed. 2d 124 (1980); State v. Tavarozzi, 446 A.2d 1048, 1051-53 (R.I. 1982). A statute quite similar to ours, except for its limitation to conduct in a public place, has been held constitutional in People v. Bakolas, 59 N.Y.2d 51, 449 N.E.2d 738, 462 N.Y.S.2d 844 (1983); see 3 American Law Institute, Model Penal Code and Commentaries § 250.2, esp. pp. 344-47 (1980).
In other provisions of the statutes, when the legislature has intended to impose а requirement that a crime be committed in a public place, it has also done so expressly. See
It is to be noted that State v. Nelson, 38 Conn. Sup. 349, 448 A.2d 214 (1982), upon which the Appellate Session relied, arose not under the disor derly conduct statute but under the breach of thе peace statute,
Appeals formerly filed in the Appellate Session of the Superior Court have been transferred to the Appellate Court by Public Acts, Spec. Sess., June, 1983, No. 83-29, § 3;
We note that the Appellate Session itself ordered a new trial on counts two and three; that order is not before us.